Australia (Request and Consent) Act 1985

Overview

The Australia (Request and Consent) Act 1985, enacted by the Parliament of Australia, serves to formalise the request and consent of the Commonwealth and all states for the enactment of specific legislation by the Parliament of the United Kingdom. This Act, assented to on 4 December 1985, was designed to address the need for Australia to achieve full legislative independence from the United Kingdom. By passing this Act, Australia sought to finalise its constitutional evolution into a sovereign, independent, and federal nation, a goal agreed upon by the Prime Minister of the Commonwealth and the Premiers of the States during conferences in 1982 and 1984. The principal policy objective of this Act is to sever the legislative ties with the United Kingdom, ensuring that no future legislation from the UK Parliament applies to Australia and to affirm the legislative powers of the Australian states. The Act also seeks to clarify and enhance the autonomy of state parliaments, as well as to eliminate any residual British governmental responsibilities over Australian states.

Scope and Application

The Australia (Request and Consent) Act 1985 applies to the Commonwealth of Australia and the States, seeking to request and consent to the enactment by the Parliament of the United Kingdom of an Act in the terms set out in the Schedule to this Act. The Act requests and consents to the United Kingdom Parliament enacting an Act to terminate the legislative power of the United Kingdom Parliament to legislate for Australia, affirm the legislative powers of State Parliaments, and remove certain restrictions on those powers. This Act operates nationally, as it involves the Commonwealth and all States, and is designed to align Australian constitutional arrangements with the status of Australia as a sovereign, independent, and federal nation. The Act provides specific amendments to the legislative powers of State Parliaments, their ability to engage in extraterritorial legislation, and the manner and form of making certain State laws. It also terminates the responsibility of the United Kingdom Government in relation to State matters and restricts the ability of the United Kingdom to disallow or withhold assent to State laws. The Act’s provisions may only be repealed or amended by an Act of the Commonwealth Parliament passed at the request or with the concurrence of the Parliaments of all the States.

Key Provisions

• The Australia (Request and Consent) Act 1985 (section 3) declares that the Parliament and Government of the Commonwealth, with the concurrence of all the States, request and consent to the enactment by the Parliament of the United Kingdom of an Act in the terms set out in the Schedule. The Schedule to the Act includes several key provisions: it terminates the power of the Parliament of the United Kingdom to legislate for Australia (Schedule section 1), affirms the legislative powers of the Parliament of each State (Schedule section 2), terminates the application of the Colonial Laws Validity Act 1865 to laws made by the Parliament of a State (Schedule section 3), and removes certain powers and functions of the United Kingdom Government in relation to the States (Schedule sections 10 and 11). The Act also addresses the manner and form of making certain State laws (Schedule section 6), the powers and functions of Her Majesty and the Governors in respect of the States (Schedule section 7), and the operation of State laws without the disallowance or suspension of operation by the Queen (Schedule section 8).
• The Act imposes several obligations on the parties it governs. Firstly, it requires that any Act of the Parliament of the United Kingdom passed after the commencement of this Act shall not extend to the Commonwealth, to a State or to a Territory as part of the law of the Commonwealth, of the State or of the Territory (Schedule section 1). Secondly, it requires that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation (Schedule section 2(1)). Thirdly, it requires that the Colonial Laws Validity Act 1865 shall not apply to any law made after the commencement of this Act by the Parliament of a State, and that no law and no provision of any law made after the commencement of this Act by the Parliament of a State shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of the Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act (Schedule section 3). Fourthly, it requires that an Act of the Parliament of a State that has been assented to by the Governor of the State shall not, after the commencement of this Act, be subject to disallowance by Her Majesty, nor shall its operation be suspended pending the signification of Her Majesty’s pleasure thereon (Schedule section 8). Finally, it requires that no law or instrument shall be of any force or effect in so far as it purports to require the Governor of a State to withhold assent from any Bill for an Act of the State that has been passed in such manner and form as may from time to time be required by a law made by the Parliament of the State, and that no law or instrument shall be of any force or effect in so far as it purports to require the reservation of any Bill for an Act of a State for the signification of Her Majesty’s pleasure thereon (Schedule section 9).
• Breach of the provisions of the Act may result in civil or criminal consequences. The maximum penalty for contravention of the Act is not specified in the text, but it may vary depending on the specific provision breached and the jurisdiction in which the breach occurs. For example, under section 18 of the Acts Interpretation Act 1901, a person who contravenes a provision of an Act that is expressed to be a criminal offence is liable to a fine not exceeding the equivalent of 100 penalty units, imprisonment for a term not exceeding 12 months, or both. However, it is important to note that the Act itself does not specify any penalties for breach of its provisions. Instead, the penalties for breach of the Act would be determined by the relevant legislation in each jurisdiction. Additionally, it is important to note that breach of the Act may also result in legal proceedings being taken against the person or entity responsible for the breach, which could result in further civil or criminal consequences.

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Repeal & Amendment